TABLE OF CONTENTS
I. PREFACE
II. INTRODUCTION
III. NOTICE TO IN-STATE PUNITIVE FATHERS
IV. NOTICE TO PRESUMED FATHER WHEN WHEREABOUTS
ARE KNOWN
V. NOTICE TO PRESUMED FATHER WHEN WHEREABOUTS
ARE UNKNOWN
VI. COPY OF THE PETITION: TO SERVE OR NOT TO SERVE,
THAT IS THE QUESTION
VII. CONCLUSION

I. PREFACE

In recent months, several states have seen intense litigation
concerning the rights of biological fathers in contested adoptions. (1)
For example, in November 2014, the Indiana Supreme Court held oral
arguments in the case of Kramer v. Catholic Charities. (2) The Kramers,
an adoptive family, filed a negligence lawsuit against Catholic
Charities after the agency failed to identify that the putative father
had registered with the Indiana Putative Father Registry. (3) The
alleged negligence of Catholic Charities in failing to notify the
biological father detrimentally affected the agency, the adoptive
family, the biological father, and most importantly the adoptee. News
sources indicated that the agency's failure to properly notify the
biological father resulted in a disruption of the parent-child
relationship between the child and the adoptive parents: "The
adoption did not go through because the father of the child stepped
forward, established paternity and successfully contested the
adoption." (4) The trial court granted summary judgment to Catholic
Charities, on the grounds that the Kramers signed documents waiving
Catholic Charities from liability related to pre-adoption placement. (5)
On appeal, the Indiana Court of Appeals was divided but ultimately
reversed and remanded the decision. (6)

Similarly in Utah, biological fathers are fighting a legal battle
against Utah. (7) A dozen fathers across the State have filed a civil
lawsuit regarding the current adoption law, which allows mothers to
secretly give their babies up for adoption. (8) The current Utah law
does not require biological fathers to receive any type legal notice,
which states a petition for adoption has been filed. (9) Requiring
notice to be given provides the biological father with a limited number
of days to contest the adoption process. (10) The notice requirement is
common in several states and at least recommended in other states. (11)

The lack of notice requirement to biological fathers is also
allegedly encouraging birth mothers to move to Utah and secretly place
the baby for adoption. The Chief Justice of the Utah Supreme Court
warned of such a scenario in which a biological father lost his bid to
gain custody. (12) In a dissenting opinion, the Chief Justice wrote,
"Utah risks becoming a magnet for those seeking to unfairly cut off
opportunities for biological fathers to assert their rights to
connection with their children. Not every unmarried biological father is
indifferent to or unworthy of such connections." (13) Overall, the
fathers who have filed suit are not only seeking monetary damages, but
are also hoping the Utah Adoption Act will be found unconstitutional.
(14)

For adoption professionals, providing proper notice to biological
fathers in the adoption context is often overwhelming. Furthermore, the
nuances of the putative father registry have recently been the subject
of complex litigation. However, understanding these nuances is vital to
protecting the interests of all entities involved--including attorneys,
agencies, biological parents, adoptive parents, and more importantly,
the adoptees.

What follows is an in-depth analysis of the key issues related to
properly notifying biological and presumed fathers of an adoption in
Alabama.

II. INTRODUCTION

Under Alabama adoption law, there are only two types of
"fathers" who are potentially entitled to notice of an
adoption proceeding and whose consent could potentially be necessary for
an adoption: presumed and/or putative. (15) A man may become a presumed
father by events transpiring around a marriage or attempted marriage, or
receiving the adoptee into his home and openly holding out the adoptee
as his own child. (16) All other potential "fathers" are
considered putative fathers. (17)

III. NOTICE TO IN-STATE PUNITIVE FATHERS

This section addresses the following questions: (1) when is a
putative father required to receive notice of a pending adoption, and
(2) when is a putative father's consent required. (18)

Statutes and case law discussed herein firmly support the
conclusion that, unless a putative father complies with the Putative
Father Registry, he is not entitled to notice and his consent is
implied.

The relevant statutes governing this question are as follows:

[section] 26-10A-17. Notice of Petition

[N]otice of the pendency of the adoption shall be served by the
petitioner on ... (10) the father and putative father of the adoptee if
made known by the mother or otherwise known by the court unless the
court finds that the father or putative father has given implied consent
to the adoption, as defined by Section 26-10A-9. (19)

[section] 26-10A-9. Implied consent or relinquishment

(a) A consent or relinquishment required by Section 26-10A-7 may be
implied by any of the following acts of a parent:

(1) Abandonment of the adoptee. Abandonment includes, but is not
limited to, the failure of the father, with reasonable knowledge of the
pregnancy, to offer financial and/or emotional support for a period of
six months prior to birth.

(2) Leaving the adoptee without provision for his or her
identification for a period of 30 days.

(3) Knowingly leaving the adoptee with others without provision for
support and without communication, or not otherwise maintaining a
significant parental relationship with the adoptee for a period of six
months.

(4) Receiving notification of the pendency of the adoption
proceedings under Section 26-10A-17 and failing to answer or otherwise
respond to the petition within 30 days.

(a) Consent to the petitioner's adoption ... shall be required
of the following:

(5) The putative father if made known by the mother or is otherwise
made known to the court provided he complies with Section 2610C-1 and he
responds within 30 days to the notice he receives under Section
26-10A17(a)-(10). (21)

(f) The Department of Human Resources shall, upon request, provide
the names and addresses of persons listed with the registry to any
court. The information shall not be divulged to any other person except
upon order of a court for good cause shown. The Department of Human
Resources shall further after receiving notice pursuant to Section
26-10A1-7 of the pendency of any adoption proceeding wherein the
proposed adoptee is a child born within 300 days of the date or dates of
sexual intercourse listed in the registry and to the same biological
mother listed in the registry, immediately send a copy of the notice of
intent to claim paternity to the court handling the adoption. When the
court handling the adoption receives the notice of the intent to claim
paternity, that court shall forthwith give notice of the pendency of the
adoption proceeding to the putative father listed in such notice of
intent to claim paternity and at the address therein listed, and
additionally notify the biological mother that the putative father has
registered in conformity with the putative father registry. (22)

A plain reading of these code sections suggests that unless a
putative father signs the registry, he is not entitled to notice, and
his consent is not required. The case of MVS. v. V.M.D. demonstrates the
Court of Civil Appeals' "adoption," if you will, of this
conclusion. In M. V.S. v. V.M.D., the Court of Civil Appeals interpreted
the Adoption Code in the following manner:

Section 26-10A-17(a)(10), a part of the Alabama
Adoption Code, requires that a putative father be
given notice of a pending adoption. Section 2610A-7(a)(5),
also a part of the Alabama Adoption
Code, requires the putative father's consent or relinquishment
if he has responded within 30 days to the
notice he received under [section] 26-10A-17(a)(10). Section
26-10C-1(i) of the Putative Father Registry
Act, which went into effect in 1997, now provides
that the putative father will irrevocably consent to
an adoption unless, within 30 days of the birth of
the child, he files a notice to claim paternity. Only
where the putative father has complied with the
provisions of the Putative Father Registry Act is the
consent of the father to the adoption required today.
Section 26-10C-1(f), specifically provides that
when the court handling the adoption 'receives said
notice of the intent to claim paternity, that court
shall forthwith give notice of the pendency of the
adoption proceeding to the putative father listed in
such notice of intent to claim paternity.' There
would be no purpose in providing unregistered putative
fathers with notice under [section] 26-10A-17(a)(10),
because a right to consent to the adoption would
have been waived by a failure to register under the
newly enacted Putative Father Registry Act. Putative
fathers who have registered would be entitled
to notice under [section] 26-10A-17(a)(10), and their consent
or relinquishment would be required under [section]
26-10A-7(5), provided that they responded within
30 days of the notice of the pending adoption." (23)

The Alabama Court of Civil Appeals and the Alabama Supreme Court
have consistently upheld this interpretation of the statutes in
question. In the 2007 Ex parte D.B. opinion, Justice Bolin of the
Alabama Supreme Court reiterated the spirit of this sentiment. (24)
Stating in relevant part:

The concept of a putative-father registry may be burdensome to a
putative father, but it cannot be contradicted that the registry
gives him an opportunity to, and a procedure by which he can,
perfect and propound that right, which he did not have before such
registries. A putative-father registry also protects the privacy
rights of the unwed birth mother by not forcing her to disclose the
identity of the birth father against her wishes. The concept of a
putative-father registry further protects the rights of the
adoptive couple. The registry gives them the confidence and
assurance that the right to notice and the issue of consent of all
necessary parties has been judicially considered in the adoption
forum. A putative-father registry advances the state's interest in
promoting "the welfare or best interests of the [adoptee], which
include the encouragement of adoption in general and an expeditious
and positive adoption specifically."
Finally, and most importantly, a putative-father registry helps
protect the best interests of the adoptee, especially an infant
child. As a result, the child will either know and receive the love
and benefit of his or her biological father, or the love and
benefit of adoptive parents, without the requirement to undergo the
emotionally wrenching experience of coming to know both through a
change in custody occasioned by protracted litigation.
There can never be a perfect procedure for giving notice to
putative fathers in newborn adoptions. It is a biological and
common sense fact that the identity of the mother will always be
known, but the same is not so for the biological father. Given the
competing interests of the parties involved, there is only so much
that government can do to seek out putative fathers and give them
notice of an adoption proceeding, while protecting the privacy
interests of the biological mother, who cannot be forced to
disclose the identity of the putative father, and at the
same time providing for an expeditious adoption proceeding. Various
commentators have brought forth criticisms of putative father
registries on different grounds. Some believe that the
establishment of putative father registries as the sole vehicle for
putative fathers to propound their rights does not go far enough,
and that a mother should be encouraged to disclose the father's
identity so that more effective means of notice can be used.
Analogies have been made that governmental programs exist that
require mothers receiving public aid to cooperate in good faith in
establishing paternity of their children. While this may be an
effective economic incentive for birth mothers in need of financial
aid, there would be no such economic motivation for the birth
mother who is placing the child for adoption. Others note that it
may be faulty to assume that "putative fathers know the registry
exists and understand the requirements of proper registration," and
"[f]ew states include publicity requirements in the registration
statute." These may be valid criticisms, but there must be a
balancing of all competing interests when considering the
overriding concern--the best interests of the adoptee.
Certainly, states can be encouraged to publicize these
putative-father registries, and to advise potential fathers of
their rights under such registries. It must be remembered that the
predicament being addressed was created when a potential father
engaged in an extramarital sexual relationship that he knew could
possibly lead to the conception of a child. The irresponsible
putative father who has no interest in any child so conceived does
not have to register and thus frees the child for adoption into a
loving home.
Should he belatedly decide that he wants to establish a
relationship with the child, neither the child, nor the adoptive
parents, have to worry about a subsequent traumatic interruption of
their family unit.
However, the responsible putative father who wants to establish,
and have the privilege of enjoying, a father-child relationship has
the ability to do so simply by perfecting his registration--a small
price to pay for the preservation of his right to a parental
relationship. Again, by putting the child's best interests
uppermost in the adoption process, a putative father registry
allows obstacles to the adoption to be quickly discovered so that
if the adoption cannot be finalized, the litigation surrounding it
will not drag on for years. A national putative father registry
would further protect against extended litigation caused by
multijurisdictional disputes, as is the case here. (25)

This sentiment was affirmed by the Alabama Court of Civil Appeals
in A.D.S. v. S.J.L.:

As we noted in J.L.P. v. L.A.M., the provisions of the Adoption
Code in effect at the time that the intervenors initiated the adoption
proceedings in this case "[did] not explicitly require consent of a
'father' to a proposed adoption except insofar as a
'father' is the 'presumed father' or the
'putative father' of the child to be adopted." We further
discussed the crucial distinction between the two terms in this context
at some length:

"The terms 'presumed father' and 'putative
father' mean different things under the Adoption Code: a
'presumed father' is '[a]ny male person as defined in the
Alabama Uniform Parentage Act,' i.e., Ala. Code 1975, [section]
26-17-1 et seq. ('the AUPA'), whereas a 'putative
father' is '[t]he alleged or reputed father.' Compare
Ala. Code 1975, [section] 26-10A-2(11), with Ala. Code 1975, [section]
26-10A-2(12). There is a further significant difference between the two
classifications. Under the Adoption Code, a 'presumed father'
of a child who has never married or attempted to marry that child's
mother is afforded an unqualified right to object to a proposed adoption
of that child, regardless of the child's actual paternity, if
'[h]e received the adoptee into his home and openly held out the
adoptee as his own child.' Ala. Code 1975, [section]
26-10A-7(a)(3)d.

"In contrast, a 'putative father' who is made known
to the court considering the adoption is merely given the right to
object to an adoption 'provided he complies with Section
26-10C-1,' i.e., the [PFRA], Ala. Code 1975, [section]
26-10A-7(a)(5). That language reflects that, since 2002, a required
consent is deemed given by implication by a failure to comply with [the
PFRA]; such consent so implied 'may not be withdrawn by any
person.' Ala. Code 1975, [section] 26-10A-9(a)(5) and (b). In turn,
[section] 26-10C-1(a) provides for a central putative-father registry in
which are to be recorded the names of, and other information concerning,
any person filing a notice of intent to claim paternity of a child. The
penalty for failing to file such a notice of intent is, under the
[PFRA], severe:

"'Any person who claims to be the natural father of a
child and fails to file his notice of intent to claim paternity pursuant
to [the PFRA] prior to or within 30 days of the birth of a childborn out
of wedlock[] shall be deemed to have given an irrevocable implied
consent in any adoption proceeding.

"'This subsection shall be the exclusive procedure
available for any person who claims to be the natural father of a child
born out of wedlock on or after January 1, 1997, to entitle that person
to notice of and the opportunity to contest any adoption proceeding
filed and pending on or after January 1, 1997.' Ala. Code 1975
[section] 26-10C-1(i) (1975)." (26)

Although A.D.S. contends that classifying him as a putative father
violates constitutional principles of due process, we noted in M. V.S.
v. V.M.D., that "due process for unwed fathers requires that state
law provide an adequate opportunity for them to claim paternity and to
take responsibility for their children in a timely manner," and we
added that "limits on procedural protection for a putative father
are necessary from the perspective of the child, who needs a stable
start in life and needs stability early." The PFRA and the Adoption
Code, taken together, afford males claiming to be the fathers of
children out of wedlock, as A.D.S. has claimed to be the father of the
child at issue in this case, a clear right to notice and rights to give
or withhold consent to a proposed adoption upon compliance with those
statutes. Without having shouldered those relatively light burdens
during the mother's pregnancy or the 30-day period following the
child's birth so as to ensure his substantive parental rights,
A.D.S. is in no position to claim that his subsequent objections to the
proposed adoption and professions of readiness to be a parent are
anything more than mere appeals to biological affinity. Stated another
way, A.D.S.'s due-process attack on the juvenile court's
judgment must fail because he failed to 'establish a substantial
relationship with the child to merit constitutional protection.'
(27)

In summary, the statutes and case law clearly support the
conclusion that unless the putative father signs the Putative Father
Registry within thirty days after birth, he is not entitled to notice
and his consent is implied.

III. NOTICE TO OUT-OF-STATE PUNITIVE FATHERS

If a child is born in Alabama and the adoption petition is filed in
Alabama, but the putative father (PF) lives in another state, is it
necessary to give notice of the proceedings to the PF?

Most likely, no. Notice to the PF would not be necessary. If
litigation ensues regarding this question, the appropriate course for
the probate court to take will be to search not only Alabama's
Putative Father Registry (PFR), but also the PFR (or other applicable
mechanism) of the state in which the PF resides. If the PF has complied
with the PFR of Alabama or his state of residence (or other applicable
mechanism), his consent will not be implied based on this criteria and
he will be entitled to notice. However, Alabama's case law offers
very little guidance on this question, and each case should be analyzed
on an individual basis.

In Mary Beck's article, A National Putative Father Registry,
she analyzes several state cases related to the above stated question:

The conclusion that can be drawn from reading the different state
cases analyzing interstate issues in adoption and dependency cases
is that states are attempting to protect the rights of fathers by
searching for putative father registrations in sending states and
not just considering the filings in the receiving states, a.k.a.
forum states, and are processing the expeditious placement of
children in adoption where fathers have not established paternity
and/or assumed parental responsibilities. (28)

In Justice Bolin's concurring opinion in Ex Parte D.B., he
explained that "[m]ost states have now passed some form of a
putative-father registry or registration of paternity, and in doing so
these states ... have done all they can to protect the rights of
putative fathers and the privacy interests of unwed birth mothers,
prospective adoptive couples, and potential adoptees, in proceedings
within the borders of each of those states." (29)

All states have provisions for a father to voluntarily acknowledge
paternity or the possibility of paternity of a child born outside of
marriage. (30)

Approximately twenty-four states (including Alabama) have
established paternity registries for this purpose. (31) In nineteen
states, the District of Columbia, and the United States Virgin Islands,
there are provisions for voluntary acknowledgment of paternity through
forms that are filed with social services departments, registrars of
vital statistics, or other similar entities. (32)

The Alabama Supreme Court case, Ex parte J. W.B., is one of the
only Alabama cases that address this question. (33) This case held that
a biological father's consent to his child's adoption was
implied by his acts and omissions. Both the biological father and the
birth mother were residents of Georgia. (34) The child was born in
Georgia, and was moved to Alabama where the adoptive family lived. (35)
Immediately following the child's birth, the biological father
claimed that the birth mother and her family had interfered with his
efforts to have a relationship with the child, but the birth mother had
no contact with the father for the next three weeks, which led her to
believe that he had abandoned the child, which encouraged her decision
to put the child up for adoption. (36)

One of the factors the court considered in finding implied consent
was the fact that the PF did not sign the PFR in Georgia (where he and
the birth mother were from), or Alabama (where the child was adopted).
(37) However, caution should be used in relying on this case to support
this memorandum's conclusion. The main factor the court considered
in finding implied consent was that the PF failed to create and maintain
a substantial relationship with his child. (38) In fact, in a
seesaw-like manner, the court states that "[b]oth parties
acknowledged that the Alabama PFR Act did not apply since the child was
born in Georgia and both the birth mother and the biological father
resided in Georgia." (39) The court ultimately held that the birth
father was not precluded in having a relationship with the child, and
that his consent to adoption was implied based on his lack of
relationship with the child. (40) The court also held that a biological
father's consent to his child's adoption was implied by his
acts and omissions.

J.W.B., at best, gives us ambiguous guidance as to the course a
court would take in determining whether our memorandum's conclusion
sufficiently protects a PF's right to notice. With the absence of
clarity on this issue in Alabama, a court would almost certainly look to
how the issue has been handled in other states. Many of our sister
states have faced this issue, and the way these states have ruled
generally favors this memorandum's conclusion.

The Court of Appeals of Oregon upheld a judgment that a PF was not
entitled to notice of an adoption preceding that took place in a state
where the PF did not register. (41) In Burns v. Crenshaw, the PF and
birth mother both lived in Washington where the child was conceived.
(42) The birth mother then moved to Oregon after finding out she was
pregnant, and the PF responded by registering in Washington, but failed
to register in Oregon. (43) The court brought up the fact that he had
reason to believe that the mother might have relocated to Oregon, yet
still failed to register there, and found that his timely registration
with Washington was insufficient to entitle him to notice in Oregon.
(44)

The Supreme Court of Minnesota also ruled on this issue in 2002.
(45) In Heidbreder v. Carton, the birth mother and PF lived together in
Iowa where they conceived a child and broke up soon after. (46) The
mother moved to Minnesota and concealed her whereabouts from the PF.
(47) He registered with Iowa's putative father registry, and though
he knew she had family in both Minnesota and Illinois, he did not file
with either state's PFRs because he alleged that he did not think
she had moved out of Iowa. (48) The child was then adopted in Minnesota.
(49) The Minnesota Supreme Court affirmed the holding that he was barred
from maintaining a paternity action, that the mother concealing her
location did not excuse him from his failure to register with the
Minnesota registry in time, and that the mother owed the PF no fiduciary
duty to disclose her location to him. (50)

Tennessee protected an Ohio PF's rights where the father
registered with the Ohio PFR 26 days after the child's birth. (51)
The father did not visit or support the mother during the pregnancy
because he said he was unsure if the child was his. (52) The Tennessee
Court of Appeals held that he was a legal father because he had properly
filed with Ohio's PFR, and that his failure to support or visit the
child was the result of the mother and her family's concerted
effort to keep him away from the child. (53) Thus, Tennessee case law
protects a PF's rights where a mother has interfered with his
efforts to assert paternity as long as the PF's actions are done in
compliance with the statute's timeline. (54)

The Ohio Court of Appeals remanded a case where an Indiana man
filed timely with the Indiana PFR. (55) Both the birth mother and the PF
were residents of Indiana. (56) Shortly after dating, she became
pregnant and placed the baby in the custody of an adoption agency also
located in Indiana. (57) The child was placed with a couple in Ohio, and
the PF opposed the adoption. (58) The court reasoned that while he
failed to register with Ohio's PFR, he registered in compliance
with Indiana's PFR statute. (59) This case affirms the principle
that the father can protect his paternity interest by timely registering
with the PFR in the state where the child was conceived and born. (60)

As another example, New Hampshire requires that a search of the PFR
of another state only occur if the child were born in another state.
However, if the child were born in New Hampshire, it does not address
that a PFR should be searched in every possible state where a putative
father registry is available. (61)

Thus, the protection offered by these registries remains only
within the borders of each of state and that particular state's
registry. In Ex Parte D.B., Justice Bolin aptly articulated the dilemma
in his concurrence:

In an increasingly mobile society, however, such
state registries cannot, and do not pretend to, provide
protection for the varied interstate interests that
may arise in the possible scenario where a putative
father may reside in one state, a birth mother in another
state, conception occurred in a third state, the
birth of the child took place in a fourth state, and the
child was placed for adoption in potentially a fifth
state. (62)

Justice Bolin continued his concurring opinion by advocating for a
national PFR, which he considers as a simple, yet important step to help
encourage finality in adoptions. (63)

Several law review articles have picked up on similar themes. In
Implementing a National Putative Father Registry by Utilizing Existing
Federal/State Collaborative Databases, Donna Moore addresses the issue
of what to do when a birth mother lives in one state (where the child
also was born and where the adoptive parents also live), and the PF
lives in another state. (64) This article addresses the fact that a
man's participation in a sexual relationship with a woman is
sufficient to "trigger the mechanism for registration." (65)
Thus, it is not necessary for the mother to make the PF aware, and a
PF's claim that he was unaware of the pregnancy or birth are an
insufficient defense. (66) Also addressed is the flaw of each state
operating a segregated database. (67) Because each state operates
independent registries, unwed mothers are allowed to move to another
state and move forward with an adoption, and the PF's lack of
knowledge of the mother's location will not excuse him from
registering. (68) The only way to remedy this flaw is to implement a
national PFR. (69)

In The Putative Father Registry: Behold Now the Behemoth (A
Cautionary Tale), Shirley Howell explains that there are no alternatives
under the Alabama statute--outside of the substantial relationship
doctrine--for a PF who fails to register with Alabama's PFR within
thirty days after the child's birth. (70) Under the substantial
relationship doctrine, by establishing a relationship with his child, a
biological father cannot be divested of his right to contest his
child's adoption proceeding by failing to sign the putative father
registry. (71) Outside of this exception, registering in accordance with
the statute is the exclusive way a PF can manifest his intent to claim
paternity of the child. (72) The finality of this statute does not
recognize ignorance of the law or ignorance of the child's birth as
an excuse. (73) Furthermore, Howell acknowledges the fact that the
Alabama Court of Civil Appeals has held in favor of the adoptive parents
in every case in which the PF failed to file with the registry within
the thirty-day time frame. (74) Complications, such as those that arise
when the birth mother and PF reside in different states, were noted to
be outside the scope of Howell's article. (75) However,
Howell's article evidences good indications as to how strict the
Alabama courts are in construing the state's PFR statute.

In conclusion, we see a question of law that lacks substantial
clarity from our courts. In the absence of such clarity and in an effort
to balance the varied interests, I recommend that adoption professionals
apply the same procedures to out of state PF as we apply to in-state
PFs. If litigation ensues, then the petitioners' attorney should
advocate that the trial court search, not only Alabama's PFR but
also the PFR (other mechanism) of the home state of the PF. If the PF
has not complied with either state's mechanism, then his consent
should be implied. (76)

IV. NOTICE TO PRESUMED FATHER WHEN WHEREABOUTS ARE KNOWN

The family structure dynamics have made the presumed father concept
more prevent than ever. What was once viewed as the traditional family
unit--a married couple with biological children produced during the
marriage--has evolved in complexity due to increases in unwed mothers,
fathers, and blended families. Alabama and many other states adhere to
this firmly rooted principle: where a man persistently embraces his
presumption of fatherhood, no other man is free to challenge it. (77)

Again, only two types of "fathers" exist in adoption
cases: presumed and putative. A presumed father may exist: (1) by events
transpiring around actual or attempted marriage, or (2) by receiving the
adoptee into his home and openly holding out the adoptee as his own
child. (78) Regardless of an actual biological connection, the adoption
code requires a presumed father's consent to adoption if:

a. He and the adoptee's mother are or have been married to
each other and the adoptee was born during the marriage, or within 300
days after the marriage was terminated by death, annulment, declaration
of invalidity, or divorce, or after a decree of separation was entered
by a court; or

b. Before the adoptee's birth, he and the adoptee's
mother have attempted to marry each other by a marriage solemnized in
apparent compliance with law, although the attempted marriage is or
could be declared invalid, and,

1. If the attempted marriage could be declared invalid only by a
court, the adoptee was born during the attempted marriage, or within 300
days after its termination by death, annulment, declaration of
invalidity, or divorce; or

2. If the attempted marriage is invalid without a court order, the
adoptee was born within 300 days after the termination of cohabitation;
or

c. After the adoptee's birth, he and the adoptee's mother
have married, or attempted to marry each other by a marriage solemnized
in apparent compliance with law, although the attempted marriage is or
could be declared invalid, and

1. With his knowledge or consent, he was named as the
adoptee's father on the adoptee's birth certificate; or

2. He is obligated to support the adoptee pursuant to a written
voluntary promise or agreement or by court order; or

d. He received the adoptee into his home and openly held out the
adoptee as his own child." (79)

Section 26-10A-17 allows for two methods of service on the presumed
father: certified mail and personal service. Section (c)(1) states that
service shall be in accordance with the Alabama Rules of Civil Procedure
(hereinafter Ala. R. Civ. P) except as modified by the Alabama Rules of
Juvenile Procedure (hereinafter Ala. R. Juv. P.). Moreover, section
(c)(3), in modification of the Ala. R. Civ. P. and Ala. R. Juv. P.,
states that service by certified mail "shall be sufficient."
(80) This modifies the service rules mentioned earlier because Ala. R.
Civ. P. 4(i)(2)(A) states that service by certified mail may not issue
without the plaintiff filing a "written request with the clerk for
service by certified mail." (81) Thus, the Adoption Code bypasses
this requirement for the petitioner to make a formal request to the
clerk for process via certified mail.

In addition, notice can be given by personal service as described
in Ala. R. Civ. P. 4. Although Alabama Code Section 2610A-17 does not
say this explicitly, it is a natural inference. Section (c)(1) of the
code says that service shall be in accordance with Ala. R. Civ. P. and
Ala. R. Juv. P. In addition, it says that notice by certified mail
"shall be sufficient." Thus, notice by certified mail is not
necessary. By default, the personal service rules of Ala. R. Civ. P. 4
would also be a sufficient method of perfecting notice.

In the event that service by either of these methods fails, the
petitioners must look to the rules governing notice by publication. If
the decision is made to rely solely on personal service (without service
by certified mail), then publication should be initiated according to
the guidelines of Ala. R. Civ. P. 4.3(d)(1). (82) If initial service by
certified mail is a method of choice, the Adoption Code provides a
streamlined process for notice by publication. Section 26-10A-17(c)(3)
of the code provides that the court shall order notice by publication if
service by certified mail fails after two attempts. The
petitioners' attorney should make a motion averring such facts with
a) an affidavit from the petitioners, and b) proof of the two failed
attempts.

V. NOTICE TO PRESUMED FATHER'S WHEN WHEREABOUTS UNKNOWN

What is the appropriate procedure for giving notice to a presumed
father when his whereabouts are unknown?

If the whereabouts of the presumed father are unknown, notice can
be given by publication. Alabama Code Section 26-10A17(c)(1) dictates
that:

Service of process shall be made in accordance with the Alabama
Rules of Civil Procedure except as otherwise provided by the
Alabama Rules of Juvenile Procedure. If the identity or whereabouts
of the parent is unknown, or if one parent fails or refuses to
disclose the identity or whereabouts of the other parent, the court
shall then issue an order providing the service by publication, by
posting, or by any other substituted service.

Although this section authorizes notice by publication to presumed
fathers whose whereabouts are unknown, it must be interpreted in
conjunction with the Ala. R. Civ. P and the Ala. R. Juv. P. Ala. R. Civ.
P. 4.3 is relevant to the question. Section (d)(1) of Rule 4.3 requires
that a specific affidavit be filed with the court prior to publication:

Before service by publication can be made in an action where the
identity or residence of a defendant is unknown, or when a
defendant has been absent from that defendant's residence for more
than thirty (30) days since the filing of the complaint or where
the defendant avoids service, an affidavit of a party or the
party's counsel must be filed with the court ave.3rring that
service of summons or other process cannot be made because either
the residence is unknown to the affiant and cannot with reasonable
diligence be ascertained, or, the identity of the defendant is
unknown, or, the resident defendant has been absent for more than
thirty (30) days since the filing of the complaint, or, the
defendant avoids service, averring facts showing such avoidance.

Rule 4.3(d)(1) requires that an affidavit be filed with the court
averring the existence of one of three possible scenarios prior to the
publication for a presumed father. Either the petitioners or their
attorney can execute this affidavit. The affidavit must aver either:

1) service cannot be made because the presumed father's
residence is unknown to the affiant and cannot with reasonable diligence
be ascertained to the affiant,

2) service cannot be made because the resident defendant has been
absent for more than thirty days since the filing of the complaint, or

3) service cannot be made because the defendant avoids service
(with specific facts being set out to support the averment). (83)

Potentially devastating problems could arise with each of these
three affidavits. To understand these potential problems, we must
remember that notice is a constitutional requirement. (84) If a
necessary party to an action never received notice, the trial court
never retained proper jurisdiction. (85) A presumed or legal father is
always a party who must receive notice. Thus, if the presumed father
fails to receive proper notice, the adoption can be voided years after
finalization.

With that refresher in mind, let's consider the first
affidavit. The first affidavit requires that the affiant aver that the
whereabouts of the presumed father cannot be ascertained with
"reasonable diligence." What is reasonable diligence? Is
thinking about it for five minutes reasonable diligence? Is searching on
Facebook, Phonebooks, and online directories reasonable diligence? Is
contacting all of the presumed father's next of kin reasonable
diligence? Or is all this required in addition to hiring a private
investigator?

If the Petitioners only look on Facebook and in the phonebook, the
presumed father could come back years later and argue that
Petitioner's search did not constitute reasonable diligence. The
presumed father could argue that reasonable diligence would have
required the Petitioner's talk to his mother, who only lived two
blocks away.

The second affidavit requires the affiant to aver that the presumed
father "has been absent for more than thirty days since the filing
of the [adoption petition]." (86) The petitioners need to aver how
they came to this conclusion and support the assertion with sufficient
facts to establish clear and convincing evidence that would make the
case "impervious" on appeal.

The third affidavit requires the affiant to aver that service
cannot be made to the presumed father "because the [the presumed
father] avoids service." (87) The petitioners need to aver how they
came to this conclusion and support the assertion with sufficient facts
to come to clear and convincing evidence. Again, the evidence must be
sufficient for making the case "impervious" for appeal
purposes.

Unfortunately, clarity on this issue is absent from the case law.
As a practice point, I recommend discussing the potential risk and cost
associated with different levels of "diligence" with the
adoptive family. However, the adoptive family and their adopted child
will have to live with the consequences of the decision, and the final
decision should rest on their shoulders. (88)

VI. COPY OF THE PETITION: TO SERVE OR NOT TO SERVE, THAT IS THE
QUESTION

Alabama's Adoption Code has very specific requirements
regarding who is entitled to notice of the petition for adoption; it
provides a list of individuals and agencies that must receive a copy of
the petition. (89)

Section 26-10A-17(b) provides that "A copy of the petition for
adoption shall be delivered to those individuals or agencies in
subdivisions (a)(2) through (a)(10)." (90)

Thus, the persons entitled to notice who must receive a copy of the
petition is everyone except, "[a]ny person, agency, or institution
whose consent or relinquishment is required by Section 26-10A-7, unless
service has been previously waived or consent has been implied."
(91)

The parties whose consent is required by Section 26-10A-7, to whom
it is not necessary to give a copy of the petition are the following:

1. An adoptee that is over the age of 14,

2. The biological mother,

3. The presumed father (under specific circumstances),

4. The agency that holds permanent custody, (or to whom the adoptee
was relinquished), and

5. The putative father (under specific circumstances). (92)

Because these five parties are required to give consent for
adoption by statute, they are not entitled to receive a copy of the
petition for adoption. However, the notice of the pendency of the
adoption proceeding must contain sufficient information to allow these
parties to substantively respond and challenge the adoption if they so
desire.

Why would the Legislature carve out this exception? My guess, and
this is only a guess, is that the Legislature saw that some parties
having all the details about the petitioners might be harmful to the
adoptee. For example, if a putative father is a fairly dangerous
individual, then it would not be good for the adoptee if the putative
father knew where the petitioners live. However, this reasoning
doesn't quite work with every party in the list.

V. CONCLUSION

Please keep in mind that this article only addresses what notice is
necessary. The demands of prudence require that each adoption be
analyzed on a case-by-case basis.

For the Kramer family and Catholic Charities, the result of their
dispute is still uncertain. Catholic Charities has petitioned the
Supreme Court to accept jurisdiction over the appeal. (93)

It is likely that the organization and legal implementation of the
putative father registry on a state and federal level will be an
evolving process, and therefore in the interests of securing the
wellbeing and stability of a child it may be best to err on the side of
caution in ensuring paternal involvement prior to filing the adoption
petition. The balance of justice and mercy often require adoption
professionals to humbly provide more notice than what the law minimally
requires.

(17) Due to the vast differences in minimum notice standards
between putative and presumed fathers, adoption professionals must be
careful to rightly categorize the potential father. See, e.g., M.M. v.
D.P. and C.P., 10 So. 3d 605, 608 (Ala. Civ. App. 2008) (overturning an
adoption because a presumed father was mis-categorized by the
petitioners' attorney and was not given notice according to the law
relating to putative fathers). In view of the risks of such
mis-categorization, adoption professionals should treat a potential
father as a presumed father when there is a doubt about his actual
status.

(39) Id. A putative father may allege that the state the child is
in does not have jurisdiction to make a custody determination. However,
Alabama (the state the child is born is) would be considered the
child's home state. Ex parte D.B., 975 So. 2d at 950. Thus, a
putative father living in another state would likely be unsuccessful in
asserting that the child's home state was anywhere else in an
attempt to file a custody proceeding in the state where he resides. In
re Hylland, 867 P.2d 551, 554 (Or. Ct. App. 1994).

(79) Although Section 26-10A-7 does not purport to define
"presumed father," in actuality the criteria listed are
definitions of a presumed father. Section 26-10A-2(11) defines a
presumed father as "any male person as defined in the Alabama
Uniform Parentage Act." The Alabama Uniform Parentage Act (UAPA)
gives essentially the same criteria as Section 26-10A-7 of the Adoption
Code. The UAPA prescribes that a man is presumed to be the father of the
child if: "(1) he and the mother of the child are married to each
other and the child is born during the marriage; (2) he and the mother
of the child were married to each other and the child is born within 300
days after the marriage is terminated by death, annulment, declaration
of invalidity, or divorce; (3) before the birth of the child, he and the
mother of the child married each other in apparent compliance with law,
even if the attempted marriage is or could be declared invalid, and the
child is born during the invalid marriage or within 300 days after its
termination by death, annulment, declaration of invalidity, or divorce;
(4) after the child's birth, he and the child's mother have
married, or attempted to marry, each other by a marriage solemnized in
apparent compliance with the law although the attempted marriage is or
could be declared invalid, and: (A) he has acknowledged his paternity of
the child in writing, such writing being filed with the appropriate
court or the Alabama Office of Vital Statistics; or (B) with his
consent, he is named as the child's father on the child's
birth certificate; or (C) he is otherwise obligated to support the child
either under a written voluntary promise or by court order; (5) while
the child is under the age of majority, he receives the child into his
home and openly holds out the child as his natural child or otherwise
openly holds out the child as his natural child and establishes a
significant parental relationship with the child by providing emotional
and financial support for the child; or (6) he legitimated the child in
accordance with Chapter 11 of Title 26." ALA. CODE [section]
26-17-204 (1975).

(80) Ala. Code [section] 26-10 A- 17(c)(3).

(81) The rule goes on to explain that service by certified mail can
be issued by the clerk of the court of the attorney. See Ala. R. Civ. P.
4(h)(i)(2)(B) (2014).

(82) See supra Part V.

(83) Ala. R. Civ. P. 4.3(d)(1).

(84) U.S. Const, amend. XIV.

(85) Ala. R. Civ. P. 4

(86) Ala. R. Civ. P. 4.3(d)(1).

(87) Ala. R. Civ. P. 4.3(d)(1).

(88) An entirely different track of analysis would be to read
Alabama Code Section 26-10A-17 as not incorporating the Alabama Rules of
Civil Procedure. Section 26-10AA-17(c)(1) and (3) provide that: "If
the identity or whereabouts of the parent is unknown, or if one parent
fails or refuses to disclose the identity or whereabouts of the other
parent, the court shall then issue an order providing for service by
publication, by posting, or by any other substituted service" and
"[a]s to any other person for whom notice is required under
subsection (a) of this section, service by certified mail, return
receipt requested, shall be sufficient. If such service cannot be
completed after two attempts, the court shall issue an order providing
for service by publication, by posting, or by any other substituted
service." Under this alternative interpretation, all the
petitioners would need to aver prior to publication is the factual
requirements set out in said code section. Due to the lack of case law
interpreting this alternative analysis, I recommend caution if
proceeding with this interpretation.

* Sam McLure is originally from Marianna, Florida. He moved to
Montgomery in 2004, and graduated from Huntington College with a B.A. in
Business Administration. Sam graduated, cum laude, from Faulkner School
of Law in 2011, where he was a member of the Faulkner Law Review and
active with the Christian Legal Society. Upon graduation, he established
The Adoption Firm--a firm dedicated to zealously advocating for orphaned
children to be adopted into loving homes. Sam and his wife, Mary Beth,
were inspired to advocate for orphaned children through the adoption of
their first son, Robi. Prior to establishing The Adoption Firm, Sam
worked in the private sector, civil defense, and the government sector.

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